אשמה בהסכמה? חוזים זוגיים הקובעים השלכות רכושיות לבגידה, והליברליזציה של דיני המשפחה

The past 50 years have witnessed a revolution in Western family law that is often described as “liberalization”. This encompasses two key trends: a decline in the significance of fault-based factors such as infidelity, and a rise in the importance of marital contracts. While these trends generally complement one another, they are liable to clash when couples attempt to dictate the economic consequences of infidelity by contract. Should such agreements be legally enforceable? Which trend aligns more closely with a “true liberal” perspective:de-emphasizing fault, or prioritizing contractual freedom?This paper proposes a new approach that goes beyond a simple contest over which trend should dominate. Drawing on mediation vocabulary, we examine the underlying motivations for each trend and demonstrate how the supposed conflict between proponents of sexual and contractual liberalization actually presents a range of potential common ground.Individuals from opposing camps, who share a core commitment to liberalism (regarding neutrality, autonomy, equality, or pragmatic considerations), can potentially reach agreements within this framework.We then explore legal mechanisms that might facilitate broad consensus,and apply the conclusions to specific legal contexts that are currently debated in Israeli law. Beyond normative conclusions about the enforce ability of such agreements, the discussion also offers a nuanced and multidimensional understanding of the process of liberalization in family law.